5.  The applicant was born on 30 April 1980 and lives in Belgium.
6.  On 29 September 1995 a certain Mr Özcan Atik was arrested on suspicion of membership of the PKK[1]. The following day the applicant was arrested in Istanbul upon information allegedly given to the police by Mr Atik. According to that information, the applicant was a member of the PKK. Following his arrest the applicant was placed in police custody.
7.  The applicant was questioned by police officers on 5 October 1995. In a written statement prepared by the police and signed by him, the applicant was quoted as having stated that he was a member of the PKK and that he had had a number of meetings with several of its members, including Özcan Atik. One day Özcan Atik had told the applicant that he had asked a certain Menderes Koçak to provide financial assistance to the PKK but that Mr Koçak had refused. Özcan Atik had then asked the applicant to help him set fire to a vehicle owned by Mr Koçak. This they had done one evening with the help of two other persons. The applicant also added that had he not been arrested, he would have taken part in further activities on behalf of the PKK.
8.  On 7 October 1995 Mr Koçak identified Mr Atik and another person as the persons who had asked him to give money to the PKK. He did not know whether it had been the same two persons who had subsequently set fire to his vehicle and shop.
9.  On 9 October 1995 police officers took the applicant and three other persons, including Mr Atik, to the street where Mr Koçak’s vehicle had been set on fire.
10.  On 12 October 1995 the applicant and 21 other persons who had been arrested as part of the same police operation were taken to the Istanbul branch of the Forensic Medicine Institute, where they were examined by a doctor. According to the medical report drawn up the same day, the applicant’s body did not bear any signs of ill-treatment.
11.  The same day the applicant was taken to the Istanbul State Security Court, where he was questioned by a prosecutor and then by a judge who ordered his detention in prison pending the introduction of criminal proceedings against him. In the statement drawn up by the prosecutor the applicant was quoted as having stated that he was a sympathiser but not a member of the PKK. He had set fire to the vehicle together with three other persons. In the statement drawn up by the judge, however, the applicant was quoted as having stated that he had set fire to the vehicle on his own.
12.  When questioned by the police, and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer.
13.  On 27 November 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant and fifteen other persons with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory. According to Article 125 of the Criminal Code in force at the time, the punishment stipulated for this offence was the death penalty (see Relevant Domestic Law and Practice below).
14.  A preparatory hearing was held on 18 December 1995 by the Istanbul State Security Court (hereinafter “the trial court”). One of the three judges on the bench was an army officer.
15.  At the first hearing, held on 27 February 1996, the applicant was present but not represented by a lawyer.
16.  During the second hearing, held on 1 March 1996, the applicant was still not represented by a lawyer but was questioned by the trial court. The applicant told the trial court that his childhood friend Özcan Atik had told him one day that he had been selling newspapers and that one of his customers had refused to pay. Mr Atik had then suggested “teaching that customer a lesson”. One night the applicant and Mr Atik had arrived outside a big building. Mr Atik had poured some petrol on the street outside the building from a jerry can and set fire to it. The applicant himself had not set fire to any vehicle and he did not know Menderes Koçak.
17.  The applicant also told the trial court that, while detained in police custody, he had been given electric shocks, sprayed with pressurised water and beaten with a truncheon; the soles of his feet had also been beaten. He had then signed the statements implicating him in the offences with which he was subsequently charged. As regards the statements taken from him by the prosecutor and the judge on 12 October 1995, the applicant stated that the prosecutor and the judge had only asked him his date of birth; he had not made any statements before them. The applicant also denied that the police had taken him to the place where he had allegedly set fire to a vehicle (see paragraph 9 above). The applicant’s request for release was rejected by the trial court the same day.
18.  During the third hearing held on 18 April 1996, a lawyer representing some of the applicant’s co-accused informed the trial court that she would also be representing the applicant. During the same hearing Menderes Koçak also gave evidence as a witness and stated that Özcan Atik had never asked him to give money to the PKK. A vehicle owned by him had been set on fire but he did not think Özcan Atik had done it.
19.  The applicant was subjected to a limited visiting regime in the prison and did not have the opportunity to have open visits with his family.
20.  The applicant did not attend four of the subsequent six hearings held at two-monthly intervals. Requests for his release made by his lawyer were all rejected by the trial court. The lawyer argued that there was no evidence against the applicant other than that obtained under ill-treatment.
21.  In the course of the 10th hearing, which was held on 29 May 1997 in the applicant’s absence but with the attendance of his lawyer, the prosecutor asked the trial court to try the applicant for the offences of membership of an illegal organisation and causing damage to property, and not for the offence with which he was charged in the indictment (see paragraph 13 above). The trial court rejected the request for the applicant’s release.
22.  The applicant’s lawyer did not attend the 11th hearing held on 17 July 1997. During the 12th hearing, on 26 August 1997, the lawyer argued that, on account of the testimony given to the trial court by Mr Koçak on 18 April 1996 (see paragraph 18 above), there was no evidence showing that the applicant had committed the offences with which he was charged.
23.  The lawyer did not attend the 13th hearing, held on 2 October 1997, because she had other business before a Labour Court. The applicant made his own defence submissions and repeated his allegations of ill-treatment in police custody. He also asked to be released. This request was rejected by the trial court.
24.  On 17 October 1997 the trial court found the applicant guilty of membership of an illegal organisation and of setting fire to a motor vehicle, and sentenced him to nine years, eight months and ten days’ imprisonment. The trial court considered that the statements given by the applicant in police custody and the statements given by his co-accused showed that the applicant was a member of the illegal organisation and that he had set fire to the vehicle.
25.  The applicant appealed. On 12 March 1998 the Court of Cassation quashed the applicant’s conviction. The case was remitted to the trial court for a retrial.
26.  On 11 September 1998 the trial court held a preparatory hearing in the retrial. One of the three judges on the bench was a military officer.
27.  Eight hearings were held between 27 October 1998 and 30 December 1999. The applicant’s lawyer attended only one of these hearings, that on 18 March 1999, whereas the applicant attended two hearings. During the 5th hearing, held on 15 July 1999, the military judge was replaced by a civilian judge in accordance with the legislation which had entered into force in the meantime (cf. Öcalan v. Turkey [GC], no. 46221/99, §§ 2-54, ECHR 2005‑IV).
28.  On 18 November 1999 a police chief informed the trial court that, contrary to the allegations, no vehicle belonging to Menderes Koçak had been set on fire.
29.  A 9th hearing was held on 21 March 2000. The applicant was present but his lawyer was not. During the hearing Menderes Koçak gave evidence before the trial court and stated that his vehicle had not been burned. No one had asked him to give money to the PKK. When asked by the trial court to explain the inconsistencies between the statement he had made to the police on 7 October 1995 (see paragraph 8 above) and his testimony, Mr Koçak stated that he had not told any such things to the police; he had had to sign whatever was written in the statement drafted by the police officers.
30.  During the same hearing the applicant reiterated that he did not know Mr Koçak and had not set fire to any vehicle. He pointed out that he had been arrested at the age of 15 with no evidence against him, and asked to be released. This request was rejected by the trial court.
31.  The applicant but not his lawyer attended the 10th hearing, held on 23 May 2000.
32.  In the course of the 11th hearing, held on 25 July 2000 in the absence of the applicant’s lawyer, the trial court was presented with a letter drafted by the applicant’s cell-mates. The letter states that “[the applicant] has serious psychiatric problems. His treatment is being overseen by a psychiatric hospital in Istanbul. He is unable to live without the assistance of others and his health is deteriorating. As such, he is unable to attend the hearings and he refused to attend today’s hearing. We felt the need to send you this letter because we have found out that his lawyer has not been attending the hearings”.
33.  According to a medical report prepared by the prison doctor on 24 July 2000 which was appended to the cell-mates’ letter, the applicant had been taken to a psychiatric hospital on 2 June 2000 and returned to the prison on 11 July 2000.
34.  The applicant’s mother also attended this hearing and informed the trial court of the applicant’s serious psychiatric problems. She asked for the applicant to be released from the prison. During the same hearing the prosecutor asked the trial court to acquit the applicant of the charge of arson (Article 516 § 7 of the Criminal Code) but to convict him of the offence of membership of an illegal organisation (Article 168 of the Criminal Code).
35.  Nevertheless, the trial court ordered the applicant’s continued detention in prison and referred him to a psychiatric hospital with a view to establishing whether he had the necessary criminal capacity (doli capax) at the time of the alleged commission of the offence.
36.  On 7 August 2000 the prison doctor reported on the problems which the applicant had been suffering in prison. According to this report, the applicant had attempted suicide in June 1999 by taking an overdose. In August 1999 he had set himself on fire and suffered extensive and serious burns. He had spent three months in hospital where he was treated for his injuries. During that time in hospital he had also received medication for depression. Following his return to the prison his treatment for the burns had continued for five months. His body still bore burn marks.
37.  On 2 June 2000 the applicant’s psychological health had deteriorated and he was taken to hospital, where he stayed for a month and a half. His health had deteriorated even further following his return from the hospital and he was now refusing to speak to anyone.
38.  The prison doctor concluded in his report that the situation in the prison was not compatible with the applicant’s treatment. The applicant needed to spend a considerable time in a specialised hospital.
39.  During the 12th hearing, held on 10 October 2000, Ms Mükrime Avcı, one of the applicant’s legal representatives named above (see paragraph 2), submitted a power of attorney to the trial court and informed that court that she was taking over the applicant’s representation. Ms Avcı argued in her written observations submitted to the trial court the same day that the applicant had only been 15 years old at the time of his arrest. Turkey was a Party to the United Nations Convention on the Rights of the Child. Article 40 § 3 of that Convention recommended that the States Parties establish procedures and institutions specifically for children charged with criminal offences. Indeed, juvenile courts existed in Turkey. However, the applicant had been charged with an offence falling within the jurisdiction of State Security Courts and, as such, the domestic law prevented him from being tried by a juvenile court. Had the applicant been tried before a juvenile court, he would not have been kept in police custody for 12 days, a lawyer would have been appointed to represent him and his case would have been concluded within a short time.
40.  The lawyer added that the ill-treatment to which the applicant had been subjected in police custody, coupled with his long detention in prison, had been too much to bear for a child of his age. He had attempted to take his own life on two occasions. He was still suffering from serious psychiatric problems and he found it difficult to attend the hearings. The lawyer asked for the applicant to be released so that he could receive medical treatment.
41.  The lawyer also informed the trial court that the applicant had not been taken to the hospital despite the court order of 25 July 2000 (see paragraph 35 above). The same day the trial court ordered the applicant’s release from prison on bail.
42.  The applicant attended the 14th hearing, held on 13 March 2001 and informed the trial court that, although he had gone to the hospital for a medical examination, the hospital authorities had refused to examine him as he had no official letter of referral. The trial court issued a new order of referral.
43.  The applicant was examined at a psychiatric hospital on 25 April 2001. According to the report pertaining to that examination, other than the two instances referred to above (see paragraph 36), the applicant had made another attempt to kill himself, by slashing his wrists, in September 1998. The extensive burn marks on his arms and body were still visible. His psychological complaints had started during his detention in prison and had worsened in the course of the time he spent there. Between 2 June 2000 and 11 July 2000 he had been treated in hospital for “major depression”. His psychological problems were now in remission. It was concluded in the report that the applicant had not been suffering psychological problems at the time of the commission of the offence and that his current mental state did not affect his criminal responsibility.
44.  In its 16th hearing, held on 22 May 2001, the trial court acquitted the applicant of the arson charge but found him guilty of membership of an illegal organisation and sentenced him to eight years and four months’ imprisonment. The trial court stated that the statements made by the applicant in police custody, and then before the prosecutor and the judge at the end of his police custody, had been decisive in reaching the conclusion that he was a member of the illegal organisation. In those statements the applicant had described the “various activities” in which he had been involved. The trial court also concluded that the applicant had been involved in the printing and distribution of illegal leaflets.
45.  The applicant appealed. On 13 March 2002 the prosecutor at the Court of Cassation submitted his written observations to that court and asked for the applicant’s conviction to be upheld. These observations were not communicated to the applicant or to his lawyer.
46.  In her detailed appeal submissions the applicant’s lawyer pointed out that the only evidence put forward by the prosecution in support of the allegation that her client was a member of the illegal organisation had been the allegation concerning the burning of a vehicle. As established by the trial court, however, no such incident had occurred and the owner of the vehicle had made no such complaint. There was no place in the Turkish legal system for abstract concepts such as “various activities” (see paragraph 44 above). For any activity to be relied on in evidence, it should have been set out clearly and supported with adequate evidence. Furthermore, the trial court’s judgment was silent as to why and how it was concluded that the applicant had been involved in the printing and distribution of the illegal organisation’s leaflets. The lawyer also reiterated her arguments concerning the applicant’s age and her references to the United Nations Convention on the Rights of the Child (see paragraph 39 above).
47.  On 20 May 2002 the Court of Cassation upheld the applicant’s conviction.
48.  According to the information provided to the Court by the applicant’s lawyer, in 2002 the applicant left Turkey for Belgium, where he was subsequently granted refugee status.